Week 3: Topic 2: Native title Lecture Notes Native Title - the historical and political context Sovereignty: Ultimate power, authority and/or jurisdiction over a people and a territory. In context of real property - includes acquisition of land by the Crown Three ways sovereignty can be acquired by the government: · Conquest: use of force to acquire sovereignty (by way of war and then treaty of surrender) · Cessation: sovereignty ceded by the other territory (treaty, within the sovereign entity hands over their power) · Settlement: requires that there is no existing sovereign entity (completely uninhabited land) In the top two, there is an existing sovereign entity and population that is recognised. Pre Mabo Australia considered Terra nullius - uninhabited country Settled by the English by virtue of land being desert and uncultivated, then the land became under English law English law subject to needs particular to the colony itself Concept of tenure - absolute and beneficial ownership resides in the Crown · The only type of title to land is by Crown grant (fee simple, lease) · Land is either granted (fee simple, lease etc) or unallocated 'waste lands' · Customary use of land by the indigenous tenure not recognised because it didn't fit the English's definition. • Could not say land was terra nullius, but the law was worried about the foundation of its property law. If the concepts of 'settlement' and 'terra nullius' are rejected, then there is no basis on which English law established and the 'skeleton' of land ownership law would be broken. Mabo v Queensland (No 2) 1992 HCA 23 per Brennan J In discharging its duty to declare the common law of Australia, this Court is not free to adopt rules that accord with contemporary notions of justice and human rights if their adoption would fracture the skeleton of principle which gives the body of our law its shape and internal consistency.
Australian law is not only the historical successor of, but is an organic development from, the law of England. [29] [41] is important find it. It is far too late in the day to contemplate an allodial or other system of land ownership. Land in Australia which has been granted by the Crown is held on a tenure of some kind and the titles acquired under the accepted land law cannot be disturbed. [49] The court wanted to retain the doctrine of tenure and crown sovereignty whilst also rejecting terra nullius. High court held that what crown had was radicle title, rather than absolute ownership (which would usually come with settlement being absolute power and beneficial ownership), radical title would allow the land to be encumbered with a valid native title interest. Mabo v Queensland (No 2) 1992 HCA 23 per Brennan J The Crown was treated as having the radical title to all the land in the territory over which the Crown acquired sovereignty. The radical title is a postulate of the doctrine of tenure and a concomitant of sovereignty.